[00:00:08] Speaker 00:
Good morning, Your Honor.

[00:00:15] Speaker 02:
You may proceed, I believe.

[00:00:17] Speaker 00:
Thank you.

[00:00:17] Speaker 00:
May it please the Court, Peter Broder for the Appellant, John Edwards.

[00:00:22] Speaker 00:
In 1992, this Court decided the Spruill case, Spruill, had a very direct result.

[00:00:31] Speaker 00:
Under the Whistleblower Protection Act, if you claimed reprisal,

[00:00:36] Speaker 00:
as a result of activities involved in a formal EEO complaint.

[00:00:42] Speaker 00:
Your remedy was within the EEO system.

[00:00:44] Speaker 04:
Well, let me ask you just to short circuit this a little.

[00:00:47] Speaker 04:
What is it in the analysis in Spruill and then in Young with regard to how they analyze the statutory text and the legislative history and the reason that you can't have these overlapping proceedings, what is

[00:01:03] Speaker 04:
in those cases that would give us a hint that they would not include, their intent was not to include informal EEO complaints, only formal complaints.

[00:01:12] Speaker 00:
I'll speak first, since you mentioned it first, to the legislative history.

[00:01:18] Speaker 00:
There's a lot of legislative history that went into the Whistleblower Protection Act.

[00:01:23] Speaker 00:
There were several bills in prior years that were considered by Congress and not adopted.

[00:01:28] Speaker 00:
And finally, in 1989, you had the Whistleblower Protection Act.

[00:01:32] Speaker 00:
If you look at the congressional reports that relate to the Whistler Protection Act in 1989, there's nothing in the legislative history that suggests the result reached by Spruill.

[00:01:47] Speaker 00:
There is one reference.

[00:01:51] Speaker 04:
You're not challenging school here.

[00:01:53] Speaker 00:
No, but you asked me the question as to how those cases were derived.

[00:01:58] Speaker 00:
And I'm trying to respond.

[00:01:59] Speaker 00:
There is nothing in the legislative history except one line.

[00:02:01] Speaker 04:
No, no, what I meant, I'm sorry if I was unbelievable, what I meant was

[00:02:05] Speaker 04:
what and what the cases relied on would let us think that Spruill was necessarily limited to only formal complaints and didn't also cover informal complaints?

[00:02:18] Speaker 00:
Because that was the holding in Spruill.

[00:02:20] Speaker 00:
Spruill was very direct.

[00:02:23] Speaker 03:
But Spruill didn't say anything like, we're only talking about EEOC complaints, EEOC complaints only and not other

[00:02:32] Speaker 03:
types of complaints where the nature is some kind of discrimination in employment claims.

[00:02:38] Speaker 00:
That's correct.

[00:02:39] Speaker 03:
And it doesn't say anything like that.

[00:02:40] Speaker 00:
No.

[00:02:41] Speaker 00:
Didn't need to.

[00:02:42] Speaker 00:
The issue in the case.

[00:02:43] Speaker 03:
So we have to look at the reasoning in Spruill to figure out why it reached the outcome it did.

[00:02:48] Speaker 03:
And part of the reasoning was looking at a prior bill which said everything between B1 to B11 is going to be eligible for

[00:03:02] Speaker 03:
an IRA and MSPB jurisdiction.

[00:03:06] Speaker 03:
And then ultimately, that all got stripped down to just V8 activity being eligible for an IRA appeal at the MSPB.

[00:03:16] Speaker 03:
And so this full court took that as some kind of important indicator in trying to think about whether EEOC type discrimination is something that's really appropriate for MSPB hearings.

[00:03:30] Speaker 03:
And they concluded no.

[00:03:33] Speaker 03:
different things get channeled to different tribunals.

[00:03:36] Speaker 03:
EEOC type stuff stays with EEOC and shall not come over to the MSPB.

[00:03:42] Speaker 00:
If it were that clear, I would agree with you, but I disagree because it's not that clear.

[00:03:47] Speaker 00:
The decision in Spool was very limited.

[00:03:50] Speaker 00:
EEO complains.

[00:03:51] Speaker 00:
It distinguished

[00:03:53] Speaker 00:
2302B9 and 2302B8.

[00:03:57] Speaker 00:
And the only reference in B9, B9 includes complaints, grievances, and appeals.

[00:04:03] Speaker 00:
The only thing that was referenced in this rule was the EEO complaint.

[00:04:08] Speaker 00:
The holding was very limited.

[00:04:09] Speaker 00:
And that's why, with respect, Your Honor, the law that ensued

[00:04:16] Speaker 00:
after school is contradictory.

[00:04:18] Speaker 00:
When the board decided 30 years later, the Edwards case, they overruled their own law, some of their own law.

[00:04:25] Speaker 00:
The law was inconsistent.

[00:04:27] Speaker 00:
The law from this circuit was certainly not clear.

[00:04:30] Speaker 00:
In Edwards, that was decided in May of 2022.

[00:04:36] Speaker 00:
What the board did not consider, and I can guess why they didn't consider it, but my guess isn't very important, was this court's presidential decision in Smolinski, January of 2022.

[00:04:47] Speaker 00:
Where exactly?

[00:04:49] Speaker 00:
The question presented here in Edwards was before the court.

[00:04:55] Speaker 00:
In Smolinski, the complaint internally within the Department of Army was of sexual harassment, which was also characterized, as here, as abuse of authority.

[00:05:05] Speaker 00:
Is it sexual harassment of a federal employee?

[00:05:09] Speaker 00:
Sexual?

[00:05:10] Speaker 00:
No.

[00:05:12] Speaker 00:
Sexual harassment of Dr. Smolinski's wife, who is not a federal employee.

[00:05:16] Speaker 03:
No.

[00:05:17] Speaker 03:
So is that a Title VII claim?

[00:05:20] Speaker 03:
Doesn't that have to be some kind of

[00:05:23] Speaker 03:
adverse employment practice with respect to a federal employee.

[00:05:29] Speaker 03:
Mrs. Smolinski was not a federal employee.

[00:05:31] Speaker 00:
If this were an EEO case, you'd be correct, but it's not.

[00:05:34] Speaker 00:
The question in Smolinski was not the harm that occurred to Mrs. Smolinski, as significant as that may have been.

[00:05:42] Speaker 00:
The question was the result for Dr. Smolinski, her husband,

[00:05:49] Speaker 00:
who, along with Mrs. Smolinski, made an internal complaint within the Department of Army about sexual harassment and abuse of authority.

[00:05:58] Speaker 00:
that was investigated.

[00:06:00] Speaker 00:
And as a result, Dr. Smolinski, who was an applicant, he was a military medical officer at the time of the incident.

[00:06:08] Speaker 00:
It was a Christmas party, of course.

[00:06:09] Speaker 03:
Right.

[00:06:11] Speaker 03:
I mean, the theory of your understanding of Smolinski, is it dependent on the view that Dr. Smolinski could have brought this complaint to the EEOC?

[00:06:22] Speaker 03:
Yes, he could have.

[00:06:25] Speaker 03:
The Federal Circuit opinion says nothing about that.

[00:06:27] Speaker 03:
The Federal Circuit opinion doesn't address the Spool slash Young issue at all.

[00:06:35] Speaker 00:
No.

[00:06:36] Speaker 00:
The Federal Circuit did not, because it wasn't before the Federal Circuit.

[00:06:40] Speaker 00:
I've reviewed the briefs, of course, in Smolenski.

[00:06:42] Speaker 00:
I've listened to the argument by my good friends from the Merits Assistant Protection Board.

[00:06:47] Speaker 03:
Right.

[00:06:47] Speaker 03:
And so I guess what I'm trying to figure out is how much can we really glean from Smolenski if

[00:06:54] Speaker 03:
it didn't even wrestle with the particulars of whether or not they had something that could be regarded as a discrimination matter on its hands.

[00:07:04] Speaker 00:
Well, I can't guess.

[00:07:07] Speaker 00:
I can't answer the question either.

[00:07:09] Speaker 00:
I can only look at what the court did.

[00:07:12] Speaker 00:
And what the court did was to state that the allegations of sexual harassment and abuse of authority

[00:07:19] Speaker 00:
were covered under the Whistleblower Protection Act with respect to Dr. Smolenski's claim that he was the victim of reprisal for involvement in that internal complaint.

[00:07:29] Speaker 00:
The result seems pretty clear, because the case got sent back to the board for resolution on the merits.

[00:07:36] Speaker 00:
And that's essentially what Mr. Edwards did here.

[00:07:38] Speaker 00:
He complained of systemic discrimination, racial discrimination, within the Department of Labor also characterized as abuse of authority.

[00:07:46] Speaker 00:
The board did not, of course.

[00:07:48] Speaker 02:
You acknowledge that we typically want to prevent, obviously, double recovery.

[00:07:51] Speaker 02:
So are you contending you have two routes and you elect one, or you continue you can do both routes?

[00:07:57] Speaker 02:
What's your overall contention?

[00:07:59] Speaker 00:
Yes, sure.

[00:07:59] Speaker 00:
Thank you, Judge.

[00:08:01] Speaker 00:
The question is, are there two routes?

[00:08:02] Speaker 00:
Yes, there are.

[00:08:03] Speaker 00:
In the Ellison case, the court made clear that the plaintiff, the complainant, the appellant is free to use whatever remedies that are available.

[00:08:10] Speaker 00:
So yes, there is some duplication.

[00:08:13] Speaker 00:
The B9 process is through the EEO complaint process.

[00:08:21] Speaker 00:
The two processes are different.

[00:08:24] Speaker 00:
The remedies are different.

[00:08:25] Speaker 00:
The procedures are different.

[00:08:27] Speaker 00:
The time limits are different.

[00:08:29] Speaker 00:
The levels of compensatory damages are different.

[00:08:31] Speaker 00:
And most importantly,

[00:08:33] Speaker 00:
The significant difference in these remedies is the ability to gain the assistance.

[00:08:38] Speaker 04:
I know, but could you ask her question, which is an important one, is do you have to pick or can you travel both routes at the same time?

[00:08:45] Speaker 00:
Travel both routes.

[00:08:48] Speaker 00:
That's my answer to your question.

[00:08:50] Speaker 00:
And the reason is because the remedial schemes are different.

[00:08:54] Speaker 00:
And the availability of the remedy is different, and most importantly,

[00:08:58] Speaker 00:
The real question is, why should you be able to do this?

[00:09:01] Speaker 00:
Why should you not have to elect a remedy?

[00:09:04] Speaker 00:
Well, first of all, there's no statutory election that's required.

[00:09:06] Speaker 00:
Congress did set up an election of remedies within the Reform Act and the List of Law Protection Act, but it doesn't involve what we're dealing with here, although it did involve some special counsel actions.

[00:09:16] Speaker 00:
But the real difference in being able to go through the individual right of action case is that you have the availability of the Office of Special Counsel

[00:09:26] Speaker 00:
who can obtain a stay of a personnel action, either a present one or a threatened one, or even a retroactive stay of a personnel action that's already been taken.

[00:09:37] Speaker 00:
And believe me, that is not available in the EEO process.

[00:09:40] Speaker 04:
Can I ask you, before your time runs out, another completely different area?

[00:09:45] Speaker 00:
Sure.

[00:09:46] Speaker 04:
I don't know.

[00:09:47] Speaker 04:
Are you arguing that there were two separate incidents, incident things that we have

[00:09:54] Speaker 04:
review here, one is the filing of the informal complaint.

[00:09:58] Speaker 04:
And then separate and distinct from that are the conversations he had with his supervisors, that those two, are you agreeing that it's all just one thing, or that those are separate?

[00:10:12] Speaker 04:
So even if the EEO see complaint,

[00:10:15] Speaker 04:
we find is covered by Spruill, there was still another claim of protected interest.

[00:10:21] Speaker 00:
Yes, Judge Post, that's correct.

[00:10:23] Speaker 00:
There is a separation in the claims.

[00:10:25] Speaker 00:
If this was only an EEO complaint, I'd not be here.

[00:10:29] Speaker 00:
The president's too quick.

[00:10:30] Speaker 04:
So how do you differentiate?

[00:10:31] Speaker 04:
I mean, let's assume we just agree with you on Spruill not covering informal complaints.

[00:10:39] Speaker 04:
So now we're left with any case that has teased out

[00:10:45] Speaker 04:
Same object of fact, same complaint, presumably going to your supervisors and complaining is the precursor to going to the informal complaint state.

[00:10:56] Speaker 04:
So you're saying even though that's a precursor, we should separate, even if NSFUL controls the EEO side, we should separate those two out so that you can proceed along both tracks at the same time for what is essentially the same disclosure.

[00:11:13] Speaker 00:
Your honor, they're not the same disclosure.

[00:11:15] Speaker 00:
Lots of people go the EEO route without going internally and making complaints among the management.

[00:11:22] Speaker 00:
They just go to the EEO office, complain of perhaps a non-selection for a job, a reprimand.

[00:11:27] Speaker 00:
They don't make protests within the agency.

[00:11:29] Speaker 00:
Some people, a few people, some rather courageous people.

[00:11:33] Speaker 03:
In the facts of your case, we would be having to do this kind of strange split.

[00:11:41] Speaker 03:
where certain things were excluded from the MSPB and other things were permitted to go into the MSPB.

[00:11:47] Speaker 00:
You might well do.

[00:11:49] Speaker 00:
The situation is very unusual.

[00:11:53] Speaker 04:
And it would certainly allow for double recovery, right?

[00:11:56] Speaker 04:
Because you're saying, are you dividing what was retaliation for the EEOC complaint versus retaliation for the disclosures made to the supervisor?

[00:12:04] Speaker 00:
You can't recover twice.

[00:12:06] Speaker 04:
But there's an overlap, right?

[00:12:08] Speaker 00:
I'm sorry?

[00:12:09] Speaker 04:
There's an overlap.

[00:12:10] Speaker 00:
There's an overlap in the processes.

[00:12:12] Speaker 00:
There's not an overlap in the recovery.

[00:12:13] Speaker 00:
Recovery is just once against the United States.

[00:12:17] Speaker 00:
You can't double the recovery.

[00:12:20] Speaker 04:
Well, if you've got two proceedings going on concurrently, so whoever, assuming you prevail in one of them,

[00:12:27] Speaker 04:
Does the other end, does that move out the other one?

[00:12:30] Speaker 04:
I'm sorry, I got moved on the brain.

[00:12:33] Speaker 00:
That depends on the remedy that's being sought.

[00:12:35] Speaker 00:
If you have a claim for compensatory damages, and somebody awards you 50,000 bucks, that's about the end of it, depending on which scheme you choose.

[00:12:48] Speaker 04:
So even though a lot of the arguments behind school and so forth dealt with efficiency,

[00:12:56] Speaker 04:
and non-overlapping sort of the efficiency.

[00:12:59] Speaker 04:
So you're contemplating a system in which two different agencies, two different proceedings are going along simultaneously.

[00:13:07] Speaker 04:
They may even, once they come to the end, then yeah, one might be mooted out because they might both give identical relief.

[00:13:16] Speaker 04:
So you've just gone through two separate proceedings about the exact, the essence of which is the exact same thing.

[00:13:23] Speaker 04:
And then

[00:13:25] Speaker 04:
one is likely going to be mooted up.

[00:13:27] Speaker 04:
What if you win on one and lose on the other?

[00:13:31] Speaker 04:
Isn't that a little awkward?

[00:13:32] Speaker 00:
I don't think so.

[00:13:35] Speaker 00:
If you prevail in anything in this system, you're doing OK.

[00:13:38] Speaker 00:
I would say it's not that awkward.

[00:13:40] Speaker 00:
The distinction that's important.

[00:13:42] Speaker 04:
Well, then there's an inconsistency, right?

[00:13:45] Speaker 04:
It means that two different bodies reviewing the retaliatory allegations are

[00:13:52] Speaker 04:
routine differently.

[00:13:54] Speaker 04:
How do you reconcile that at the end of the day?

[00:13:56] Speaker 00:
Do you go up to the court of appeals and say, you can lose for many reasons.

[00:14:00] Speaker 00:
But as a litigator, I know that.

[00:14:03] Speaker 00:
But if you lose in one, then you're going to have a question of collateral estoppel as to the other.

[00:14:11] Speaker 00:
Yes, of course, there should be an impact of a loss in one on the other.

[00:14:15] Speaker 04:
So you've got proceedings that are clearly close enough so that there's a collateral estoppel?

[00:14:19] Speaker 04:
Could.

[00:14:22] Speaker 04:
You want us to reserve the rebuttal?

[00:14:23] Speaker 00:
I would.

[00:14:24] Speaker 00:
Thank you.

[00:14:24] Speaker 00:
Thank you, Your Honor.

[00:14:34] Speaker 01:
May it please the court.

[00:14:36] Speaker 01:
Spruill and Young are dispositive of this case.

[00:14:40] Speaker 01:
The issue before you today is the same issue that was before the court 30-some years ago in Spruill.

[00:14:46] Speaker 01:
The court in Spruill called it a straightforward question of statutory interpretation, which it remains.

[00:14:51] Speaker 04:
Let me ask you a question.

[00:14:53] Speaker 04:
This is a hypothetical.

[00:14:55] Speaker 04:
You've got several different potential buckets here.

[00:14:58] Speaker 04:
You've got the Spruill case, which is you've got a formal complaint.

[00:15:02] Speaker 04:
Then you've got our case, which is a little different, because you've got one informal EEOC complaint and the other package with a disclosure that is outside of the EEOC ring.

[00:15:16] Speaker 04:
What about a third case?

[00:15:17] Speaker 04:
What about if Mr. Edwards had just gone to the Washington Post and made these allegations, or to his favorite congressperson, and made these allegations to him, and then had an allegation

[00:15:30] Speaker 04:
and same allegations dealing with EEO problems in the agency.

[00:15:34] Speaker 04:
Is it the government's position that that too would be confined to the EEOC?

[00:15:40] Speaker 04:
Or when that's just a clean thing that has nothing to do with any EEOC proceedings, is that one allowed to go through the IRA procedure?

[00:15:49] Speaker 01:
No.

[00:15:49] Speaker 01:
It's our position that regardless of channels, going to Washington Post, going to Congress, regardless of channels, the Title VII allegations remain Title VII allegations.

[00:16:00] Speaker 01:
under 2302, Title VII is confined to B1, which Congress did not give the MSPB authority to hear in an IRA appeal.

[00:16:12] Speaker 01:
In 1221.

[00:16:13] Speaker 04:
And there are clear, I'm not an EEO lawyer.

[00:16:16] Speaker 04:
So you can go to the EEOC and say, I was retaliated against because I went to the Washington Post and made these discrimination allegations.

[00:16:27] Speaker 04:
And the EEOC has relieved

[00:16:29] Speaker 04:
for that kind of retaliatory conduct?

[00:16:31] Speaker 01:
Both Title VII and EEOC regulations provide remedies for opposition to what's called practices made unlawful by Title VII.

[00:16:42] Speaker 01:
So the opposition clause of Title VII, and also under EEOC regulations, 29 CFR 1614.101 paragraph B.

[00:16:53] Speaker 01:
that when someone opposes discrimination in their workplace, in the federal government, and they're retaliated against for doing so, they have an EEO claim.

[00:17:03] Speaker 01:
And the EEOC says, we will treat that type of claim the same way we treat discrimination claims.

[00:17:09] Speaker 01:
And the Supreme Court has said this as well, that retaliation for exposing discrimination is the same as discrimination.

[00:17:18] Speaker 01:
The Supreme Court said that in Gomez Perez.

[00:17:21] Speaker 01:
So yes, there is always the avenue for opposing discriminatory practices of going to the EEOC, going through the agency EEO process.

[00:17:32] Speaker 01:
On the other hand, the Congress did not give the MSPB that authority to hear those types of cases.

[00:17:38] Speaker 01:
They could have, as was mentioned, there was an earlier version of the act that gave the MSPB

[00:17:45] Speaker 01:
authority to hear any prohibited personnel practice under 2302.

[00:17:50] Speaker 01:
But that was not enacted.

[00:17:52] Speaker 03:
But this rule of court didn't necessarily say that all claims that arise under B1 are excluded from MSPB jurisdiction.

[00:18:06] Speaker 03:
It didn't say it quite like that.

[00:18:09] Speaker 03:
It just simply held that an EEOC complaint

[00:18:13] Speaker 03:
doesn't qualify as whistleblowing activity under BEA.

[00:18:17] Speaker 01:
I believe the Sproul Court said this selectivity was intended by Congress, that not all of these identified probative personnel practices under 2302 are going to be actionable in an IRA appeal.

[00:18:34] Speaker 01:
If you look at the prior version of it, there was no qualification.

[00:18:38] Speaker 01:
It was all of them.

[00:18:40] Speaker 01:
And the enacted version in 1989 didn't have B1.

[00:18:44] Speaker 01:
It only had B8.

[00:18:45] Speaker 01:
It was the only provision that was identified.

[00:18:49] Speaker 02:
How do you distinguish Molinsky?

[00:18:52] Speaker 01:
So Smolinski's purely a whistleblower case.

[00:18:56] Speaker 01:
The court in its decision did not invoke Title VII, did not invoke sex discrimination.

[00:19:04] Speaker 01:
They do use the term sexual harassment.

[00:19:07] Speaker 01:
But in doing so, they're not talking about a federal employee, and they're not talking about discrimination in the federal workforce.

[00:19:13] Speaker 03:
Do you agree that sexual harassment is a form of sex discrimination?

[00:19:18] Speaker 01:
Sex harassment is a form of sex discrimination in employment, in the EEO law.

[00:19:23] Speaker 01:
That is correct.

[00:19:24] Speaker 01:
But the person in the situation, let's go back to the facts alleged.

[00:19:30] Speaker 01:
The facts alleged in Smolinski did not involve EEO, employment opportunity.

[00:19:36] Speaker 01:
Because the person involved was not an employee, she was a spousal.

[00:19:40] Speaker 04:
So it didn't involve sexual harassment.

[00:19:42] Speaker 04:
Sexual harassment is covered by Title VII for federal employees.

[00:19:45] Speaker 04:
But sexual harassment, is this your answer?

[00:19:47] Speaker 04:
that covers action by one federal employee against creating a hostile work environment for another employee.

[00:19:56] Speaker 01:
That's exactly right.

[00:19:58] Speaker 01:
And the Smolinski court made no indication that it wanted to overrule Spruill or Young.

[00:20:04] Speaker 01:
There's probably a huge spectrum of bad behavior that qualifies to be a violation of Title VII, and there's a huge spectrum of bad behavior that constitutes wrongdoing under B-8.

[00:20:20] Speaker 01:
And maybe there is some overlap in terms of how it's described.

[00:20:24] Speaker 01:
Sexual harassment was probably a good way to describe what was happening in Smolinski.

[00:20:29] Speaker 01:
But it didn't involve federal employees.

[00:20:31] Speaker 01:
So it wasn't discrimination in federal employees.

[00:20:34] Speaker 03:
Dr. Smolinski himself was a federal employee.

[00:20:38] Speaker 03:
So he had a right to file a claim somewhere.

[00:20:43] Speaker 03:
He faced some retaliation for disclosing the way that Colonel bullied him and sexually harassed his wife and then suffered a retaliation event from that.

[00:20:56] Speaker 03:
So that's not something that could go to EEOC?

[00:21:01] Speaker 01:
Well, again, it depends on the allegations, which this Court has emphasized in various cases.

[00:21:07] Speaker 01:
What Dr. Smolinski alleged was not a Title VII claim.

[00:21:11] Speaker 01:
What he alleged was that he made disclosures about the

[00:21:17] Speaker 01:
the poor treatment his wife received at the emergency room.

[00:21:20] Speaker 01:
And then he, after that, they had to run in at the Christmas party and the bad behavior.

[00:21:27] Speaker 01:
And that, both he and his wife cooperated with an investigation into the Colonel's behavior.

[00:21:33] Speaker 01:
That's also protected under the Whistleblower Protection Act.

[00:21:37] Speaker 01:
So he had two claims there, both of which were protected under the Whistleblower Protection Act.

[00:21:41] Speaker 01:
He was not claiming that he was being discriminated against for sex discrimination.

[00:21:47] Speaker 01:
So he didn't have a Title VII claim.

[00:21:49] Speaker 04:
In some of these cases, at least one or two, they had two different claims.

[00:21:53] Speaker 04:
One that arguably was not under Title VII, and then another claim for disclosure of misuse of government funds or whatever.

[00:22:00] Speaker 04:
I don't think they ever went anyway, because I think in those cases that our court said, you haven't alleged it with sufficient specificity in order to move forward.

[00:22:08] Speaker 04:
But if we did have such a case with sufficient specificity, do we bifurcate that?

[00:22:14] Speaker 04:
And one goes through door one, and the other goes through door two?

[00:22:18] Speaker 01:
That's correct.

[00:22:19] Speaker 01:
I mean, Ellison recognized that you can have, based on the same facts, you can have an array of different claims, including discrimination claims and whistleblower claims.

[00:22:30] Speaker 01:
And in fact, that's not unusual at all.

[00:22:32] Speaker 01:
But there are different procedures for each.

[00:22:36] Speaker 01:
And if it doesn't involve an adverse action, like this case doesn't involve an adverse action, then the whistleblower process is exclusive to whistleblowing.

[00:22:48] Speaker 04:
What about your friend's argument that Congress probably didn't envision this because there's this great avenue of relief that is given to the special counsel to stay something happening, which I don't know.

[00:23:04] Speaker 04:
I've taken this word.

[00:23:05] Speaker 04:
is available on the EEO procedures.

[00:23:08] Speaker 04:
So that's one of his arguments, I guess, about employees ought not to be deprived of going this route, because they'll lose the right to get this fantastic remedy of stay.

[00:23:20] Speaker 04:
And that Congress wouldn't have necessarily intended

[00:23:24] Speaker 01:
Right, so the special counsel's authority under 5 U.C.

[00:23:29] Speaker 01:
1214 is different from the board's authority under 1221, and it actually, for statutory interpretation purposes, it's very helpful to compare the two because the special counsel can investigate any prohibited personnel practice in 2302.

[00:23:45] Speaker 01:
The MSPB is limited to what Congress says in 1221, which is B8 and parts of B9.

[00:23:54] Speaker 01:
So the special counsel can ask for a stay in anything it's investigating.

[00:24:00] Speaker 01:
The special counsel could ask for a stay of a B1, for example, and come to the board.

[00:24:05] Speaker 01:
And in fact, Mr. Edwards cites a board order.

[00:24:09] Speaker 01:
It's not a presidential, but a board order granting a stay based on B1 that was requested by the special counsel.

[00:24:16] Speaker 01:
The board's authority to do that, to issue that stay,

[00:24:20] Speaker 01:
was under 1214.

[00:24:21] Speaker 01:
It doesn't have that type of authority under 1221 because it has no authority under 1221 to get into B1.

[00:24:30] Speaker 01:
B1 is not one of the provisions that is listed in 1221.

[00:24:35] Speaker 01:
So it is true.

[00:24:36] Speaker 02:
Do you believe there are two separate claims as Judge Prost kind of identified when she was talking to opposing counsel or do you think it's just all one in the same?

[00:24:46] Speaker 01:
In this case, it's all one claim.

[00:24:48] Speaker 01:
It's all Title VII.

[00:24:50] Speaker 01:
Everything that's been alleged is Title VII.

[00:24:53] Speaker 01:
And the informal complaint makes that clear.

[00:24:56] Speaker 01:
And if there was retaliation for that complaint, that comes under, in terms of the Whistleblower Protection Act, that comes under B9A, as the court said in Spruill and Young.

[00:25:09] Speaker 01:
The Congress basically codified Spruill in the WPEA when it split up B9A into complaints having to do with whistleblowing.

[00:25:18] Speaker 03:
Just to be a little more specific, is it possible that there are two separate events here, two separate whistleblowing related acts?

[00:25:28] Speaker 03:
One is when Edwards went to the supervisors

[00:25:34] Speaker 03:
and disclosed to them that they were engaging in some kind of racial employment practice.

[00:25:42] Speaker 03:
And then two, when Edwards later, after he somehow got demoted or had his responsibilities taken away from him, he filed an informal EEO complaint with, I don't know, the HR department or something.

[00:25:59] Speaker 03:
So are those two separate events?

[00:26:04] Speaker 01:
Do you mean in terms of how they should be treated?

[00:26:07] Speaker 01:
Yeah.

[00:26:08] Speaker 01:
No.

[00:26:08] Speaker 01:
They're both, they're both Title VII.

[00:26:11] Speaker 01:
It's all Title VII.

[00:26:13] Speaker 01:
Opposing discriminatory practices, whether going to management or going to the EEO office or talking to the Washington Post, that all comes under the opposition clause that's in Title VII.

[00:26:25] Speaker 01:
It comes under EEOC regulation.

[00:26:27] Speaker 03:
You would call it exercising a Title VII right.

[00:26:29] Speaker 03:
Yes.

[00:26:30] Speaker 03:
And in Young, we said exercising the Title VII writers outside of MSPP jurisdiction.

[00:26:38] Speaker 01:
Yes.

[00:26:39] Speaker 01:
And in Young, the court also said there's other mechanisms to remedy that.

[00:26:45] Speaker 01:
So the court in Young was aware of the EEOC remedy.

[00:26:49] Speaker 01:
And so was the court in Spruill, that there was this other remedy.

[00:26:52] Speaker 01:
And in fact, in Spruill, there's two types of duplication we can talk about.

[00:26:57] Speaker 01:
There's getting two bites at the apple, which

[00:27:00] Speaker 01:
we sort of discussed earlier.

[00:27:02] Speaker 01:
But there's also the duplication of processes.

[00:27:05] Speaker 01:
The idea that's discussed in Spruill, which is that EEOC is the expert agency on discrimination.

[00:27:14] Speaker 01:
And it seems that Congress has preserved that both when it passed the WPA and when it passed the WPEA.

[00:27:22] Speaker 01:
It preserved the role of the EEOC.

[00:27:23] Speaker 01:
It didn't give the MSPB responsibilities that duplicate those processes.

[00:27:30] Speaker 01:
And it could have, looking at what was considered in 1987, but Congress chose not to.

[00:27:36] Speaker 01:
And so this is the system that we have.

[00:27:40] Speaker 01:
And if you look at B9A, I think that the point I was trying to make before was that it essentially codifies Spruill because it splits up the type of complaints into complaints about whistleblowing and complaints not about whistleblowing, such as EEO complaints.

[00:27:56] Speaker 01:
So Congress was very aware of Spruill and this court's case law and did not overrule it and, in fact, preserve Spruill in the law itself.

[00:28:10] Speaker 01:
If there's no further questions, we would just ask the court to affirm the decision of the board.

[00:28:15] Speaker 04:
Thank you.

[00:28:20] Speaker 04:
We'll restart in two minutes.

[00:28:22] Speaker 04:
Because I have a quick question.

[00:28:25] Speaker 04:
This goes to at the tail end of our discussion when you were up here before, you talked about the two proceedings and potential of different outcomes.

[00:28:34] Speaker 04:
Spool, it seems to me, addresses that explicitly.

[00:28:38] Speaker 04:
I mean, Spruill talks about what we're trying to avoid.

[00:28:42] Speaker 04:
We're trying to avoid, for example, 692 is Spruill.

[00:28:45] Speaker 04:
It says, we're conserving resources, avoid potentially conflicting procedures or outcomes.

[00:28:51] Speaker 04:
I mean, Spruill, our court in Spruill spoke quite clearly of how it didn't envision the procedure going.

[00:28:58] Speaker 04:
I mean, that seems contrary to the proceedings that you're advocating to us here.

[00:29:04] Speaker 00:
if you read Spruill well beyond the holding.

[00:29:09] Speaker 00:
which was limited to EEO complaints, as the board did in the Edwards case, which brings us here.

[00:29:18] Speaker 00:
That's true.

[00:29:19] Speaker 00:
But the boards were always inconsistent.

[00:29:21] Speaker 00:
And Smolinski, as I view Smolinski, allows for these internal complaints to be voiced through the IRA process.

[00:29:32] Speaker 00:
To me, there is a conflict in the two.

[00:29:35] Speaker 00:
Again, the processes are different.

[00:29:38] Speaker 00:
And my friend makes a very good point, that a person with an EEO complaint can still go to the Office of Special Counsel and ask for stay.

[00:29:48] Speaker 00:
The problem is that the Office of Special Counsel, through their own regulations, says, we don't want to deal with that.

[00:29:53] Speaker 00:
We want to relegate that to the EEO process.

[00:29:57] Speaker 00:
It's kind of circular.

[00:29:58] Speaker 00:
The other interesting thing, to me it's interesting, is that if the person with the IRA appeal

[00:30:04] Speaker 00:
takes the case from the special counsel to the MSPB, the administrative judge of the MSPB has the authority to entertain a stay application.

[00:30:14] Speaker 00:
It's not just limited to the special counsel, which tends to defer to the EO process.

[00:30:19] Speaker 00:
The AJ has that authority as well.

[00:30:22] Speaker 00:
Do they exercise law?

[00:30:23] Speaker 00:
I don't know.

[00:30:24] Speaker 00:
I don't read all their decisions.

[00:30:26] Speaker 00:
But the authority is there.

[00:30:29] Speaker 00:
And the burdens of proof in the two different cases are starkly different.

[00:30:33] Speaker 00:
The burden of proof is much higher on the government in an IR case that's clear and convincing evidence than in an EEO case where the plaintiff always has the burden of proof but for causation analysis.

[00:30:45] Speaker 00:
So the cases are different.

[00:30:47] Speaker 00:
And that's why we're here.

[00:30:49] Speaker 00:
If you relegate these people to the EEO process and you make it clear, then the board's going to have a lot less business.

[00:30:59] Speaker 00:
People won't be taking these IRA cases.

[00:31:01] Speaker 00:
But there's a further implication here, which has not been considered by any of the courts.

[00:31:06] Speaker 00:
And that's under 23-0.

[00:31:09] Speaker 00:
The references there are to complaints, grievances and appeals.

[00:31:23] Speaker 00:
Think about grievances.

[00:31:25] Speaker 00:
If the board starts considering whether these IRA allegations are subject to a grievance procedure, then a lot of this will be relegated to the collective bargaining contract process.

[00:31:36] Speaker 00:
That's not what Congress intended.

[00:31:38] Speaker 00:
There's nothing like that in the legislative history.

[00:31:40] Speaker 00:
The difficulties in expanding the exclusions

[00:31:45] Speaker 00:
to the Whistleblower Protection Act are considerable.

[00:31:49] Speaker 00:
And the Whistleblower Protection Act was supposed to be expansive and not restrictive.

[00:31:54] Speaker 00:
And that's our position here.

[00:31:55] Speaker 04:
And I thank you very much for your consideration.